Pamela Sue Harris v. Nancy A. Berryhill

Filing 28

MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish. For all of the foregoing reasons, IT IS ORDERED that the decision of the Commissioner finding Plaintiff not disabled is AFFIRMED. (ec)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Plaintiff 12 13 14 15 Case No. 5:17-cv-00273-GJS PAMELA SUE HARRIS MEMORANDUM OPINION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 I. 17 18 PROCEDURAL HISTORY Plaintiff Pamela Sue Harris (“Plaintiff”) filed a complaint seeking review of 19 Defendant Commissioner of Social Security’s (“Commissioner”) denial of her 20 application for Disability Insurance Benefits (“DIB”). The parties filed consents to 21 proceed before the undersigned United States Magistrate Judge [Dkts. 11, 12] and 22 briefs addressing disputed issues in the case [Dkt. 22 (“Pltf.’s Br.”) and Dkt. 23 23 (“Def.’s Br.”), Dkt. 25 (“Pltf.’s Reply).] The Court has taken the parties’ briefing 24 under submission without oral argument. For the reasons set forth below, the Court 25 affirms the decision of the ALJ and orders judgment entered accordingly. 26 27 28 II. ADMINISTRATIVE DECISION UNDER REVIEW On September 23, 2013, Plaintiff filed an application for DIB. [Dkt. 15, Administrative Record (“AR”) 18, 148-149.] The Commissioner denied her initial 1 claims for benefits on January 27, 2014, and upon reconsideration on April 10, 2 2014. [Id.] On February 17, 2016, a hearing was held before Administrative Law 3 Judge (“ALJ”) John W. Wojciechiwski. [AR 31-55.] On March 16, 2016, the ALJ 4 issued a decision denying Plaintiff’s request for benefits. [AR 17-31.] Plaintiff 5 requested review from the Appeals Council, which denied review on December 12, 6 2016. [AR 1-7.] Applying the five-step sequential evaluation process, the ALJ found that 7 8 Plaintiff was not disabled. See 20 C.F.R. §§ 404.1520(b)-(g)(1). At step one, the 9 ALJ concluded that Plaintiff had not engaged in substantial gainful activity since 10 November 3, 2011, the alleged onset date, through September 30, 2013, her date last 11 insured. [AR 20.] At step two, the ALJ found that Plaintiff suffered from the 12 following severe impairment: degenerative disc disease of the lumbar spine. [Id. 13 (citing 20 C.F.R. §§ 404.1520(c)).] Next, the ALJ determined that Plaintiff did not 14 have an impairment or combination of impairments that meets or medically equals 15 the severity of one of the listed impairments. [AR 21 (citing 20 C.F.R. Part 404, 16 Subpart P, Appendix 1; 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526).] The ALJ found that Plaintiff had the following residual functional capacity 17 18 (RFC): 19 [L]ight work as defined in 20 CFR 404.1567(b)… [s]pecifically, the claimant was able to lift and carry 20 pounds occasionally, 10 pounds frequently; could sit for 6 hours out of an 8 hour day, all normal breaks. She could occasionally perform postural activities such as climb, balance, stoop, kneel, crouch and crawl, but could never use ladders, ropes, and scaffolds. She had to avoid concentrated exposure to extreme heat, cold, vibrations, and industrial hazards[.] 20 21 22 23 24 25 [AR 22.] Applying this RFC, the ALJ found that Plaintiff could perform past 26 relevant work as a receptionist (DOT 237.367-038), and, thus, is not disabled. [AR 27 25.] 28 2 1 2 III. GOVERNING STANDARD Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 3 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 4 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 5 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 6 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 7 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 8 Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see 9 also Hoopai, 499 F.3d at 1074. 10 11 12 13 IV. DISCUSSION Plaintiff’s sole claim is that the ALJ improperly found Plaintiff’s testimony not fully credible. [Pltf.’s Br. at 3-13.] Plaintiff testified that she was unable to work because of limits on her ability 14 to sit, stand, and walk. [AR 39.] When asked about her ability to walk, Plaintiff 15 replied that she was unable to walk for more than a quarter of a mile and that she 16 experienced pain walking down her driveway. [AR 47.] Plaintiff also testified that 17 she could sit for five to twenty minutes and stand for five to twenty minutes at a 18 time. [AR 48-49.] Plaintiff reported that her mother drives her to the grocery store 19 and helps her do the laundry. [AR 46.] Plaintiff makes her own breakfast, walks, 20 and does exercises. [AR 46-47.] Plaintiff stated that she can lift a gallon of milk 21 and occasionally uses the computer. [AR 47, 49.] 22 The ALJ found Plaintiff’s subjective symptom testimony not fully credible. 23 [AR 22.] The ALJ noted that although Plaintiff’s medically determinable 24 impairments could reasonably be expected to cause some of Plaintiff’s alleged 25 symptoms, Plaintiff’s allegations concerning the intensity, persistence, and limiting 26 effects of her symptoms were not credible to the extent alleged. [Id.] “Where, as 27 here, an ALJ concludes that a claimant is not malingering, and that she has provided 28 objective medical evidence of an underlying impairment which might reasonably 3 1 produce the pain or other symptoms alleged, the ALJ may ‘reject the claimant’s 2 testimony about the severity of her symptoms only by offering specific, clear and 3 convincing reasons for doing so.’” Brown-Hunter v. Colvin, 806 F.3d 487, 492-93 4 (9th Cir. 2015) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 5 2007)). Even if “the ALJ provided one or more invalid reasons for disbelieving a 6 claimant’s testimony,” if he “also provided valid reasons that were supported by the 7 record,” the ALJ’s error “is harmless so long as there remains substantial evidence 8 supporting the ALJ’s decision and the error does not negate the validity of the ALJ’s 9 ultimate conclusion.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 10 (internal quotation omitted). 11 “The ALJ may consider many factors in weighing a claimant’s credibility, 12 including (1) ordinary techniques of credibility evaluation, such as the claimant’s 13 reputation for lying, prior inconsistent statements concerning the symptoms, and 14 other testimony by the claimant that appears less than candid; (2) unexplained or 15 inadequately explained failure to seek treatment or to follow a prescribed course of 16 treatment; and (3) the claimant’s daily activities.” Tomasetti v. Astrue, 533 F.3d 17 1035, 1039 (9th Cir. 2008) (internal citations and quotations omitted); see also 18 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (explaining that 19 acceptable bases for credibility determination include (1) the claimant’s reputation 20 for truthfulness; (2) inconsistencies in the claimant’s testimony or between his 21 testimony and conduct; (3) claimant’s daily living activities; (4) claimant’s work 22 record; and (5) testimony from physicians or third parties concerning the nature, 23 severity, and effect of claimant’s condition). 24 Here, the ALJ gave four reasons to reject Plaintiff’s credibility: (1) Plaintiff’s 25 symptoms improved with treatment; (2) Plaintiff’s poor work history; (3) Plaintiff’s 26 conservative treatment; and (4) lack of objective evidence to support Plaintiff’s 27 claim of severe limitations. As discussed below, the ALJ offered legally sufficient 28 reasons to support the adverse credibility determination. 4 1 First, the ALJ found that Plaintiff’s symptoms significantly improved with 2 treatment. The effectiveness of treatment and medications in controlling Plaintiff’s 3 symptoms is a valid reason for discrediting a claimant’s testimony. See Tommasetti 4 v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (finding that the ALJ properly 5 rejected claimant’s subjective complaints where medical records showed that she 6 responded favorably to conservative treatment of physical therapy and medication); 7 Warre v. Comm’r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 8 (“Impairments that can be controlled effectively with medication are not 9 disabling[.]”). Here, Plaintiff received epidural steroid injections for her back. [AR 10 233, 245, 247, 259, 262-263, 265.] The ALJ observed that in September 2012 11 Plaintiff had epidural injections and reported that they “significantly reduced the 12 back pain.” [AR 23, 247.] At a May 2013 examination, Plaintiff reported that an 13 epidural injection in the past had provided “excellent pain relief for nearly 1-2 14 years.” [AR 23, 245.] Plaintiff does not dispute this, but argues that a doctor’s note 15 from October 2013 (outside the relevant period for DIB) indicated that Plaintiff had 16 chronic back pain. [Reply at 4.] However, as the ALJ pointed out, Plaintiff “had 17 not had any [epidural steroid injections] in the last couple of years.” [AR 23.] In 18 fact, a medical note from a month prior, September 2013, indicated that Plaintiff 19 “revealed that she has not proceeded with the injection.” [See AR 286-287.] Thus, 20 the record reflects that Plaintiff’s failure to receive recommended treatment may 21 have contributed to her back pain in October 2013. Accordingly, the Court finds 22 that the medical record supports the ALJ’s conclusion that Plaintiff’s pain and 23 symptoms caused by degenerative disc disease of the lumbar spine improved with 24 epidural steroid injections and, therefore, this was a clear and convincing reason to 25 discount Plaintiff’s credibility. 26 Second, the ALJ asserted that Plaintiff’s limited work history was a clear and 27 convincing reason to reject Plaintiff’s testimony. [AR 24.] Plaintiff does not 28 dispute this reasoning, but states that her work history cannot be the sole reason to 5 1 find Plaintiff not fully credible. 1 [Pltf.’s Br. at 11 (citing Floyd v. Astrue, 2010 WL 2 2196120, at p. *8 (S.D. Cal. 2010).] 3 An ALJ may properly consider a claimant’s poor or nonexistent work history 4 in making a negative credibility determination. Thomas v. Barnhart, 278 F.3d 947, 5 958-59 (9th Cir. 2002) (internal quotation omitted) (“The ALJ may consider at least 6 the following factors when weighing the claimant’s credibility…[her] work 7 record”); see, e.g., Aarestad v. Comm’r of Soc. Sec., 450 Fed. App’x. 603, 604 (9th 8 Cir. 2011) (unpublished) (affirming ALJ’s determination of claimant’s testimony as 9 partially not credible where claimant “worked only sporadically before the alleged 10 onset of disability (which suggests that her decision not to work was not based on 11 disability)”); Burkstrand v. Astrue, 346 Fed. App’x. 177, 179 (9th Cir. 2009) 12 (unpublished) (“limited work history” negatively impacted credibility). Here, the 13 ALJ found that “there are very few years before 2011 that the claimant ever worked 14 for an entire year at substantial gainful activity level” and, thus, “one would 15 question if claimant’s impairments are the primary reason she is currently 16 unemployed.” [AR 24.] The Detailed Earnings Query reflects extremely limited 17 earnings between 2003 and 2011. [AR 152.] “For example, [Plaintiff’s] earnings in 18 2003 were only $1386 and in 2006 she earned $958 for the entire year. In 2010 she 19 only earned $50.” [AR 24; see also AR 152] The ALJ was entitled to determine 20 from Plaintiff’s pre-disability period work history (or lack thereof) that she lacked 21 motivation to work. Indeed, the Ninth Circuit has expressly approved of an ALJ 22 rejecting a claimant’s credibility when the claimant’s “extremely poor work history” 23 reflecting “little propensity to work in her lifetime”—i.e., where a claimant’s “work 24 history was spotty, at best, with years of unemployment between jobs, even before 25 she claimed disability. Thomas, 278 F.3d at 959. Thus, the ALJ properly relied on 26 27 28 1 The Court need not address this argument because the Court finds that the ALJ had at least two well-supported reasons for discounting Plaintiff’s testimony in this case. 6 1 2 Plaintiff’s work history in discounting her credibility. Finally, Plaintiff asserts that the ALJ improperly relied on a lack of objective 3 evidence and conservative treatment history to discredit her testimony. [Pltf.’s Br. 4 at 12-13.] She argues that there was evidence in the record that substantiated her 5 physical impairment and established that her treatment, which included epidural 6 steroid injections, was not conservative. [Id. (citing AR 233-235, 247).] However, 7 because the Court has already determined that sufficient evidence supported the 8 ALJ’s decision to discount Plaintiff’s subjective complaints, it need not determine 9 whether the ALJ materially erred in considering these other reasons for discrediting 10 Plaintiff’s testimony. See Carmickle v. Commissioner, 533 F.3d 1155, 1162-63 (9th 11 Cir. 2008) (finding an error by the ALJ with respect to one or more factors in a 12 credibility determination may be harmless if the ALJ’s “remaining reasoning and 13 ultimate credibility determination were adequately supported by substantial 14 evidence in the record” (citing Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 15 1197 (9th Cir. 2004))). 16 Accordingly, the Court concludes that the ALJ provided clear and convincing 17 reasons, supported by substantial evidence, for finding Plaintiff less than fully 18 credible, and thus, there is no error warranting reversal and remand. V. 19 20 21 CONCLUSION For all of the foregoing reasons, IT IS ORDERED that the decision of the Commissioner finding Plaintiff not disabled is AFFIRMED. 22 23 IT IS SO ORDERED. 24 25 26 DATED: November 22, 2017 __________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 27 28 7

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